COMMISSIONER LEHMAN: If not, next I would like to
call Orville Litzsinger, please.
MR. LITZSINGER: Good morning, and thank you, Mr.
Commissioner, for the opportunity to speak. We, too,
appreciate this opportunity, which hasn't always been
available to us.
I represent The Alliance for American Innovation,
which is located at 1100 Connecticut Avenue, here in
Washington, in Suite 1200.
In Washington, The Alliance for American
Innovation represents over 3,000 members of the innovative
community, focusing primarily on the independent and small
business inventors, but we also work in the interests of a
number of small businesses, including the biotech people and
people in the venture capital area, as well.
While Paul Wolstenholme indicated that his group
was disorganized, we do represent an organization here
locally, and we are a fast-growing organization, and I would
like to certify at this time, we are not funded by -- and I
am not personally funded by -- anyone that has been accused
of being a submarine inventor. Okay?
[Laughter.]
I would appreciate the same certifications by
people speaking in your behalf that speak for associations
and other groups, that they certify that in their private
business they do not have clients that are of a conflict of
interest to what is happening to the United States patent
system.
After reviewing the documentation supporting this
idea, I have some specific points that I will make relative
to that. And if I vary, it will be only in response to
previous comments made and allowed, and anything superfluous
to that will be held to a strict minimum.
When we reviewed the rules, of course, one of our
main concerns is the fee area. And so what is new, right,
with the independent inventors? We have had a problem with
the fees for a long time.
But specifically, one of the questions that we
have is maintenance fees. I fail, and our people fail, to
find a specific place where the clock starts ticking on
maintenance fees. Are people going to have to pay
maintenance fees before their patent is issued in some
cases? Or are they going to pay them in six months after
issuance? Or when are they going to pay that
three-and-a-half-year maintenance fee?
We need to know that. Mr. Kirk?
MR. KIRK: The maintenance fees would be due
exactly as they are, from point of issuance.
MR. LITZSINGER: From point of issuance?
MR. KIRK: From point of issuance.
MR. LITZSINGER: Thank you. That was a question
that we had.
A question that we had, also, reflects to the
package being circulated in support of the effort, which
lists about 20 companies or organizations that are on-line.
We question the degree of completeness of that, relative to
people that are on there, as to whether they still are. I
know the Biotech Industries Association was listed as a
supporter, and we know that within the past few weeks they
had a vote here of the Patent Subcommittee, and the biotech
firms voted two to one to support the Rohrabacher-Dole
effort that gives the option of 20 years or 17.
If we are talking to the list of supporters
relative to 20-year term, you could add our name to that
list because we do support a 20-year term from date of
filing, or 17 years from date of issue. We believe that our
proposal has been less severe than the one adopted in
response to the GATT enabling legislation.
We would like the IPO for their recent alert on
submarine patents because they use an example of a 40-year
patent and we saw the response prepared by the inventors'
people that indicated that that patent had been in the
Patent Office for 29 years and ball was only in the court of
the inventor for less than 30 months. So if that is the
best example that we can get for submarine patents, we are
okay.
Additionally, I sat in on a meeting last week with
people from Phillips Petroleum, with Congressman
Rohrabacher's staff, and they brought in two patents. They
said, "These are submarine patents. Look, here."
By the time they left, they realized, after we
examined them closer, that the delays were not caused by the
inventor, the delays were caused by divisional actions and
interferences.
They also left knowing that, under the new system,
that their company would have lost $300 million because
their patent would have expired before they had a chance to
exercise it.
I have that in a letter going back to the CEO of
Phillips Petroleum that Congressman Rohrabacher sent, and if
you desire it, I am sure he would respond with a copy for
you.
One of the factors on fees that we discussed is
the requirements that we have, not only to pay the fees, but
to get venture capital. There was a report that was just
put out by Oak Ridge National Laboratory on an inventions
program that the Department of Energy has for independent
inventors. That report says that for every dollar spent by
the independent inventor to get to the point where he has a
patent or almost to that point, he needs $37.00 after that,
to commercialize his product.
This is why the National Venture Capital
Association is in support of our preference for the optional
term, because the venture capitalists across this country
will no longer invest in a system where the inventor is not
guaranteed a fixed time of return on that money.
I note your reference to the Constitution earlier.
I note the reference to the Constitution earlier and your
reference in a response to an inventor just three days ago,
where you brought the subject of the Constitution up.
Section 8 of the Constitution has 18 things listed
in it that give the Congress powers to do certain actions.
Clause No. 8 -- there are 18 clauses -- clause No. 8 says
that the Congress shall have the power to promote the
progress of science and useful arts by securing for a
limited times to authors and inventors the exclusive right
to the respective writings and discoveries.
The GATT enabling legislation took this right
away. It is the only right, out of those 18 clauses, that
is no longer in effect in this country.
That right has been in existence for 200 years,
plus, and it includes other rights, such as forming and
maintaining a militia, an army and navy, and making loans,
and the things that we say.
In a discussion that I had at the White House
yesterday, they indicated that the administration position
on that was issued as a result of a recommendation from the
PTO. Now, we have a situation for the first time in 200
years, the Congress has been influenced to remove a right of
the independent inventors in this country.
Also, speaking of other difficulties associated
with this, beyond that, the insurance underwriters are
saying that because of the due diligence effort discussed
earlier, that malpractice insurance for patent attorneys
will grow tremendously before it will cease to exist because
of the liability and the problems associated with the
process of the patent for the inventor.
The provisional application and the 18-month
clock, or 6-month clock as we discussed yesterday. When
does the clock start on publication, if, in fact, that bill
is passed? Does it mean that an invention is published at
six months instead of 18? There are a lot of folks that
have some serious problems with that.
I want to say, again, thank you for the
opportunity to speak. I would be happy to answer any
questions that you might have and, of course, I have a
written correspondence that I will submit formally.